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Gauhati High Court · body

2005 DIGILAW 245 (GAU)

Harinath v. State of Assam and Ors.

2005-03-20

B.K.SHARMA

body2005
1. By means of this writ application, the petitioner has prayed for a direction to the respondents, more particularly to the respondent No. 5 to release the pensionery benefits to the petitioner after observing the necessary formalities. The specific prayer made in this writ petition is for direction to the respondent No. 5, i.e., the Principal, Cotton College, Guwahati to forward the pension papers of the petitioner with necessary recommendation to the Accountant General of Assam, so that the petitioner who has retired from service on attaining the age of superannuation on 29.2,2000 gets his pensionery benefits. 2. The petitioner was initially appointed as a Laboratory Assistant in the Department of Chemistry, Cotton College way back in 1961 (2.8.1961), Subsequently, he was promoted to the post of Head Assistant and he continued in the said post and retired from service on attaining the age of superannuation w.e.f. 29.2.2000. There was some dispute relating to the date of birth of the petitioner and his retirement from service on that basis. The petitioner had approached this court by filing W.P.(C) No. 1515/2001 and the same was disposed of by order dated 9.6.2003. The claim for correction of recorded date of birth made by the petitioner was not accepted. As regards the period of overstay in service, it was provided in the order that the respondent No. 5 would not insist upon the refund of the amount drawn by the petitioner during the period. Thus the retirement of the petitioner w.e.f. 29.2.2000 was sustained. However, it is the grievance of the petitioner that even after more than five(5) years of his such retirement, he has not been paid his pensionery and other retirement benefits. Hence this writ petition seeking appropriate direction. 3. The respondent No. 5 has filed an affidavit purportedly on behalf of all the respondents. In paragraph 5 of the affidavit a statement has been made that the petitioner is liable to make refund of Rs. 3,83,940. According to the respondents, the petitioner mis-appropriated this amount under various heads as indicated below : - 1. Rent Collection from old canteen - Rs. 98,838.00 2. N,C. Bill No. 54 - Rs. 27,600.00 3. College Library dues for Books - Rs. 2,790.00 4. Cash Book (As per Local Audit) - Rs. 6,842.00 5. Collection for Library Fund - Rs, 1,63,015.00 6. Laboratory Fund - Rs. 85,315.00 Rs. 3,83,940.00 4. Rent Collection from old canteen - Rs. 98,838.00 2. N,C. Bill No. 54 - Rs. 27,600.00 3. College Library dues for Books - Rs. 2,790.00 4. Cash Book (As per Local Audit) - Rs. 6,842.00 5. Collection for Library Fund - Rs, 1,63,015.00 6. Laboratory Fund - Rs. 85,315.00 Rs. 3,83,940.00 4. A further statement has been made in the paragraph that the petitioner did not submit his pension papers in prescribed format as per Government rules. According to the respondents, the petitioner made an application on 6.11.2003 for release of his pensionery benefits. However, as several mis-appropriation charges were pending against the petitioner, the respondents could not release the pensionery benefits to the petitioner. It is the stand of the respondents that to earn the pensionery benefits, the petitioner has to return the outstanding amount to the respondents first. 5. Mr. S.D. Choudhury, learned counsel for the petitioner strenuously argued that the petitioner is in great financial hardship inasmuch as for the last five(5) years he has not been provided with the pensionery and other retirement benefits. He submits in reference to the provision of the Assam Services (Pension) Rules 1969 that the respondents merely on some allegation cannot withhold the pensionery and other retirement benefits payable to the petitioner. He submits that there being no disciplinary or judicial proceeding pending against the petitioner, the respondents cannot withhold the pensionery benefits payable to the petitioner, 6. Mr. Munir, learned Standing Counsel, Education Department on the other hand submits that since there are outstanding liabilities in the name of the petitioner, unless those liabilities are cleared by the petitioner, he is not entitled to any pensionery benefits. He submits in reference to the stand in the affidavit that the petitioner is liable to make refund of the aforesaid amount of Rs. 3,83,940 and the petitioner having not refunded the said amount till date in respect of the request made to him, he is not entitled to any pensionery benefits unless and until the said amount is refunded. 7. I have considered the submissions made by the learned counsel for the parties and the materials available on records. There is no dispute that the petitioner retired from service on attaining the age of superannuation w.e.f. 29.2.2000. The various provisions made in the Assam Services (Pension) Rules 1969 emphasise on timely payment of pensionery and other retirement benefits. 7. I have considered the submissions made by the learned counsel for the parties and the materials available on records. There is no dispute that the petitioner retired from service on attaining the age of superannuation w.e.f. 29.2.2000. The various provisions made in the Assam Services (Pension) Rules 1969 emphasise on timely payment of pensionery and other retirement benefits. However, an incumbent may be paid provisional pension if any departmental or judicial proceeding is pending against him. In the instant case it is nobody's case that any departmental proceeding or criminal proceeding is pending against the petitioner. However, Mr. Munir, learned Standing Counsel, Education Department submits that a police case being Panbazar P.S. Case No. 363/02 on the basis of the FIR lodged by the College Authority is still pending. In this connection he has produced a copy of the letter dated 9.3.2005 issued by the Panbazar Police Station addressed to the Administrative Officer, Cotton College, Guwahati. As per the said letter, the aforesaid police case registered under section 409 IPC is pending investigation. Thus, here is a case that although the police case was registered against the petitioner way back in 2002, even in the year 2005, the investigation is still pending. 8. Rule 21 of the Assam Services (Pension) Rules 1969 empowers the Governor of Assam to withhold or withdraw a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to the Government, if in a departmental or judicial proceeding the pensioner is found guilty of grave misconduct or negligence during the period of his service. As per rule 2Kb), such departmental proceeding, if not instituted while the officer was in service, whether before his retirement or during his re-employment, shall not be instituted save with the sanction of the Governor of Assam. Further such proceeding shall not be in respect of any event which took place more than 4 years before such institution. Similarly as per rule 21(c), no judicial proceeding, if not instituted while the officer was in service, whether before his retirement or during his re-employment shall be instituted in respect of a cause of action which arose or an event which took place more than 4 years before such institution. Similarly as per rule 21(c), no judicial proceeding, if not instituted while the officer was in service, whether before his retirement or during his re-employment shall be instituted in respect of a cause of action which arose or an event which took place more than 4 years before such institution. The consultation of the Audit Public Service Commission is also required. 9. The judicial proceeding and departmental proceeding have been defined under explanation to rule 21. As per the said explanation, a departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the officer or pensioner, or if the officer has been placed under suspension from an earlier date, on such date and a judicial proceeding shall be deemed to be instituted in the case of a criminal proceeding on the date on which the complaint or report of Police Officer, on which the Magistrate takes cognizance, is made. In the instant case apart from the aforesaid FIR stated to be lodged in 2002 on which the investigation is still on as per the communication made to the College Authority by the Panbazar Police Station in their letter dated 9.3.2005. Thus, in terms of the said explanation, no criminal proceeding is pending against the petitioner. Such criminal proceeding will have to be understood in the context in which the same has been defined and explained under Explanation to rule 21. The petitioner has also not been charge-sheeted in any departmental proceeding. It is not the case of the respondents that any departmental proceeding is pending against the petitioner. Thus, here is case although no judicial or departmental proceeding is pending against the petitioner, but yet his pensionery benefits have been withheld by the respondents more particularly the respondent No. 5. The provisions under rule 21 of the Assam Services (Pension) Rules 1969 make the position abundantly clear. 10. Since as per the explanation to rule 21 of the aforesaid rules/there is no departmental or criminal proceeding pending against the petitioner, the power of withholding pension either in whole or in part is not available in the instant case. Moreover, it is the Governor of Assam which alone is empowered to withhold such pensionery benefits. 10. Since as per the explanation to rule 21 of the aforesaid rules/there is no departmental or criminal proceeding pending against the petitioner, the power of withholding pension either in whole or in part is not available in the instant case. Moreover, it is the Governor of Assam which alone is empowered to withhold such pensionery benefits. Further, the provisions of rule 21 also provide that in case of institution of any departmental proceeding not instituted while the officer was in service, shall not be instituted save with the sanction of the Governor of Assam. The FIR lodged against the petitioner way back in 2002 cannot be used as a tool to deprive the petitioner of his pensionery and other retirement benefits, having regard to the specific actions made in the Explanation to rule 21. It is nobody's case that pursuant to the FIR lodged against the petitioner and registering the Panbazar Police Case No. 363/02 under section 409 IPC, the jurisdictional Magistrate has taken cognizance of the offence. Thus, on both counts the petitioner's pensionery benefits could not have been withheld by the respondents. 11. Time and again, the Apex Court has emphasized that pension is not a bounty but the same is a right of the person concerned who has retired from service. The pension rules itself has made specific provision for providing pensionery benefits at the earliest opportunity. It is true that in the event of any departmental or criminal proceeding pending against an incumbent, it may not be appropriate to grant him full pensionery benefits, but even in that case, the provisional pension is required to be paid. In the instant case not to speak of paying the petitioner final pensionery benefits, he has not been paid even the provisional pension for the last five years, 12. In view of the above, the writ petition succeeds granting the prayers made in the writ petition. The respondents shall forthwith make necessary arrangement for release of pensionery and other retirement benefits to the petitioner. Necessary formalities in this regard shall be carried out within a period of three (3) months from today. In view of the above, the writ petition succeeds granting the prayers made in the writ petition. The respondents shall forthwith make necessary arrangement for release of pensionery and other retirement benefits to the petitioner. Necessary formalities in this regard shall be carried out within a period of three (3) months from today. In the event of failure on the part of the respondents, more particularly the respondent No. 5, to provide pensionery and other retirement benefits to the petitioner as may be admissible under the rules on the basis of his retirement on attaining the age of superannuation on 29.2.2000, the petitioner will be entitled to get interest at the rate of 9% per annum on the entire amount. The amount shall be recovered from the erring officers. 13. I make it clear that the respondents, will be entitled to make recovery of general dues, but not on account of any allegation of misappropriation of any fund as alleged in the counter affidavit the course of action which was open to the respondents was to initiate departmental proceeding, which is now barred as per the provisions of rule 21 of the Assam Services (Pension) Rules 1969. 14. The writ petition stands allowed to the extent indicated above, leaving the parties to bear their own costs.